Davis v. Jenkins

The opinion of the court was delivered by Johnston, J.:

This case is founded on the alleged fraud and deceit practiced by Davis on Jenkins in a transaction relating to a timber-culture claim, and we fail to see why the petition does not set forth a cause of action. In substance, it avers that Davis, who claimed a right under the United States laws to a tract of land, and that he owned and controlled the relinquishment of the same, represented it to be well-located, good, level, tillable land, suitable for timber-culture and agricultural purposes, and especially adapted to the wants of Jenkins, who wished to enter a timber-culture claim under the United States land laws. He confided in the truth of the representations made by Davis, and purchased and paid him for the relinquishment and claim. He avers that the representations were false in every particular; that Davis had no right in the claim, and did not own or control the relinquishment thereto; that the tract was not located where he represented that it was; that it was not level, tillable land, and not suitable for agricultural and timber-culture purposes; but, on the contrary, was rough, hilly, mountainous sand hills, *22 and untillable piles of pure sand, and wholly worthless. Jenkins alleged that, by reason of the fraud and deceit practiced upon him by Davis, he had parted with his property, exhausted his rights under the timber-culture laws of the United States, and been otherwise damaged, in the total sum of $1,500.

The fact that Jenkins was required to make an affidavit when he placed his timber-culture filing on the land does not debar him from recovering the damages which he actually sustained. It is claimed that if he complied with the act of congress in making the affidavit, he must have known the character of the land, and therefore could not have relied upon the representations of Davis. In this affidavit the applicant swears that the land was prairie, or devoid of timber, •but is not required to state anything in regard to the quality of the soil or the purposes for which it was adapted. (1 Supp. Rev. Stats, of U. S. 348.) Jenkins may have been acquainted with the fact that the land was prairie, and devoid of timber, without having a knowledge of the exact location, or whether it was good, tillable land, suitable for agriculture and the cultivation of timber. If he relied upon the representations, as alleged, and was thereby deceived to his injury, he may recover for the damage sustained, although he might have ascertained by a further search and inquiry that the statements made by Davis were untrue. (McKee v. Eaton, 22 Kas. 226 ; Claggett v. Crall, 12 id. 393.)

In instructing the jury the court stated that land entered under the timber-culture act was not taxable from the time the entry is made until final proof is made and a final certificate is received from the register of the land office, and that final proof may be made at the expiration of eight years, but it is not necessarily made until the expiration of thirteen years. It is not claimed that this is. an incorrect statement of the law, but it is contended that it is inapplicable in the case. The non-taxable feature of a timber-culture claim was a proper consideration for the jury in determining the value of such a claim, and of the right to enter the same.

*23 No error was committed by the court in granting an attachment after the return of the verdict. The statute provides that an attachment may issue “at or after the commencement” of an action. The order may therefore be granted at any time during the pendency of the action, and before the final determination of the same. In the present case, after the verdict was returned, notice of a motion for a new trial was immediately given, and the motion was duly filed within the statutory time. It is true, that after a judgment is recorded it is effectual, notwithstanding the pendency of a motion for a new trial; (Church v. Goodin, 22 Kas. 527 ;) but here the judgment was reserved until the disposition of the motion for a new trial. The plaintiff in error asks, What is to be gained by the levy of an attachment after verdict upon real estate, since the judgment when finally rendered becomes a lien upon the real estate from the first day of the term of court? A sufficient answer to the inquiry is, that no judgment was recorded; and if the court had set aside the verdict which had been returned and had granted a new trial, there would have been no lien nor any protection against the fraudulent disposition of the real estate by the plaintiff in error. The purpose of an attachment is to seize and hold the property until it can be subjected to execution; and a party is entitled to the benefit of an attachment until the entry of a judgment upon which an execution may issue. Until the judgment is finally entered an attachment may be had, and a lien of the same continues till it is merged in the judgment finally rendered and recorded. The priority obtained by the attachment continues after the entry of judgment until execution issues. (Speelman v. Chaffee, 5 Col. 247 ; Lynch v. Crary, 52 N. Y. 181 ; Bagley v.Ward, 37 Cal. 121 ; Schieb v. Baldwin, 22 How. Pr. 278 ; Drake, Attach., § 224.)

There is some contention with respect to the sufficiency of the evidence, but the record does not properly show that all of the evidence is preserved, and hence no consideration of that subject is demanded. (Hill v. National Bank, 42 Kas. 364 .) We have read the testimony contained in the record, however, *24 and are inclined to the opinion that it is sufficient to sustain the verdict and judgment that were given.

Judgment affirmed.

All the Justices concurring.